MA/626/2010 of UNITED INDIA INSURANCE CO. Vs RAKESH KUMAR AND ORS. on 29 December 2017

1. The Appellant-Insurance Company has filed the present Civil 1[st] Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988 against the award of the MACT, Jammu, dated 09.01.2010, passed in file No. 486/Claim, titled Kunti Devi Vs United India Insurance Co. & ors. and order dated 20.07.2010 passed by MACT, Jammu whereby application of the appellant for modification/ rectification and reopening of the award has been dismissed. Appeal under Section 173 of the Motor Vehicle Act, 1988 against the award of the MACT, Jammu, dated 09.01.2010, passed in file No. 486/Claim, titled Kunti Devi Vs United India Insurance Co. & ors. and order dated 20.07.2010 passed by MACT, Jammu whereby application of the appellant for modification/ rectification and reopening of the award has been dismissed.

2. Appellant has challenged the impugned award/judgment on the grounds that the award impugned in the present appeal is against the law and facts of the present case. The same is factually incorrect and has been passed in utter disregard to the legal and factual position and is liable to be set aside. The Tribunal below committed grave illegality while passing the award by not looking into the pleadings specifically stated in para 18 of the claim petition that the deceased was married and had left behind widow and minor child who were the legal heirs and real dependents of the deceased entitled to compensation on the death of the deceased. The award impugned proves the casual approach and non-application of that the award impugned in the present appeal is against the law and facts of the present case. The same is factually incorrect and has been passed in utter disregard to the legal and factual position and is liable to be set aside. The Tribunal below committed grave illegality while passing the award by not looking into the pleadings specifically stated in para 18 of the claim petition that the deceased was married and had left behind widow and minor child who were the legal heirs and real dependents of the deceased entitled to compensation on the death of the deceased. The award impugned proves the casual approach and non-application of

judicial mind by the Presiding Officer and the award, thus, is not sustainable in the eyes of law. The Tribunal below committed grave illegality in not looking into section 166(1) of the M.V. Act wherein it is mandatory that all legal representatives of the deceased are required to be impleaded and such legal representatives who have not joined in filing the petition, are required to be impleaded as respondents to the petition. The petition being contrary and against the mandatory provision of section 166(1) of M.V. Act was required to be dismissed by the Tribunal below. From the award and the order dated 20.07.2010 it appears that the Tribunal below completely failed to understand the proviso to section 166(1) of M.V. Act and the purpose for which the same had been incorporated. The award impugned and order dated 20.07.2010 having been passed without considering the scope and the purpose of proviso to section 166(1) of the M.V. Act has resulted in the passing of the award which is patently illegal arbitrary and perverse and deserves to be set aside. It is further stated that the Tribunal below while invoking its jurisdiction failed to consider that the petition was bad and illegal for non-joinder of necessary parties both under ordinary civil law as well as section 166(1) of the M.V. Act since all legal heirs / legal representatives, real dependents had not been impleaded as parties to the claim petitions though they were both necessary as well as proper parties, in whose absence no final adjudication would have taken place. The award having been passed contrary to the settled principles of law does not stand to legal parameters and is not legally sustainable. The award impugned in the present appeal is patently illegal and perverse as the same has been passed holding the deceased Mintoo to be a bachelor, whereas as per admitted facts, he was married and had left behind widow and a minor child. It is further stated that the award impugned in the present appeal is bad and illegal as it deprives the widow and the minor child of the compensation to which they were really entitled and instead awards

compensation to major brother and sister, who were neither legal heirs of the deceased in presence of widow and minor child nor in any manner dependent upon the deceased. It is further stated that Kunti Devi was 50 years old whereas the deceased was admittedly 35 years old as per the petition filed by Kunti Devi. Kunti Devi in her statement had given her age to be 55 years and Tribunal after recording the said fact at page 8 of the award still held that she fell in the age group of 45 to 50 years which was completely contrary to the statement of Kunti Devi and the same led to wrong application of multiplier by the Tribunal. The award, thus, proves the complete non-application of judicial mind by the Tribunal below and the casual approach applied by it without going into the pleading and the evidence on the file. The award of compensation to respondents 1 and 2 in the presence of widow and minor child of the deceased, cannot be sustained in law and deserves to be set aside. It has been further stated that the Tribunal while awarding compensation to respondents 1 & 2 has completely ignored the fact that neither of them had filed the claim petition nor appeared in the witness box to prove their dependency upon the deceased. Award of compensation without evidence of dependency upon the deceased is not sustainable and deserves to be set aside. The Tribunal below has committed illegality in rejecting the application of the appellant arbitrarily. The appellant by the said application was neither disputing its liability nor the awarded compensation. The appellant was only trying to bring the real facts to the notice of the Tribunal that the deceased had left behind widow and minor child, who were the legal representatives and dependents of the deceased, entitled to compensation on his death and in their presence no compensation could be awarded to respondents 1 & 2. The Tribunal also ignored the fact that the widow and minor under the M.V. Act could file claim petition after any number of years as there was no limitation for filing the same and non-impleadment and non-consideration of the dependency of widow and minor while deciding the petition could lead to filing of more claim petitions for the same death. It has been further stated that the Tribunal below while passing the order dated 20.07.2010 has illegally held that the appellant is not an aggrieved party and not competent to file the application. The compensation had been directed to be paid by the appellant. The Tribunal also ignored the fact that all rights and liability of the interested parties under law were required to be decided before disbursement of the amount so as to avoid future litigation and multiplicity of litigation. The Tribunal while deciding this application failed in its duty to ensure that the compensation is paid to legal heirs/ dependents of the deceased and to none else. It also ignored the fact that widow and minor child cannot claim compensation out of the awarded amount as no award is passed in their favour by the Tribunal though legally the award was required to be passed in their favour. The award impugned in the present appeal and order dated 20.07.2010 is bad and illegal on all counts and proves the casual approach and non-application of judicial mind by the Tribunal, the same being contrary to the facts pleaded in the petition, evidence on the file and contrary to the provisions of M.V. Act and principles for award of compensation and deserves to be set aside.

set aside.

I have considered the arguments of counsel for the petitioner and that of respondents. From the perusal of the impugned award, it reveals that one Kunti Devi, mother of respondents No. 1 & 2 filed claim petition on account of death of deceased Mintoo who died in a road traffic accident on 12.10.2005. During the pendency of this claim petition, the original petitioner died and respondents No. 1 & 2 who are major children were arrayed as legal heirs and Motor Accidents Claims Tribunal, Jammu after conclusion of proceedings passed Award/Judgment of compensation of Rs.3,45,000/- in favour of Kunti Devi. Thereafter, appellant filed an application for modification / rectification and reopening of the award. In this application, it was stated that the InsuranceCompany got investigated the claim, which reveals that the deceased was married and left behind Neetu alias Bindu Devi and one child. These, widow and one child were not arrayed as proforma respondents and major sons and Kunti Devi are not entitled for maintenance as per law. However, this petition was also dismissed.

4. From the perusal of trial court file, it is evident that one Kunti Devi filed a petition for compensation on account of death of her son Mintoo who died in RTA which took place on 12.10.2005 at Prem Nagar at about 9.30 pm when deceased was coming back after closing Rehari/ business ,when offending scooter JKO2S/7471 hit him; he sustained grievous injuries and died on 13.10.2015.

5. In the claim petition it has been stated that deceased was married and had wife and minor child, but wife has left along with child. Further perusal of claim petition and award, it is evident that when Kunti died, her evidence was already completed. She had produced evidence with regard to her dependency on deceased as mother.

6. Petitioner Kunti Devi died on 6.8.2009 during pendency of claim petition and her major son and daughter (brother and sister of deceased) were arrayed as petitioners; Tribunal after conclusion of trial granted compensation to the tune of Rs.3,45,000/- along with interest @7.5% pa.

7. Tribunal below assessed the income of deceased as Rs.5,000/- PM; thereafter treating the deceased as bachelor, 50% deduction was made from his income and further treating the age of petitioner in between 45-50, applied multiplier of 11 and granted the compensations. The relevant part of award reads as under:- “So far as assessment of compensation is concerned, the income of the deceased is shown Rs 7000/- PM as alleged by the petitioner, the deceased was earning this much income from Meat/Teka Rehari but no conclusive of has been brought on record. The income of the deceased has also remained unrebutted but to my estimation it is shown to be exaggerated. Now by some guess work the income of the deceased is fixed at Rs 5000/- PM. So far as deductions are concerned, I am also guided by CIMA Nos. 167/2008 and 144/2008 decided on 17.7.2009 in case titled United India Insurance Co. Ltd. v/s Om Parkash & Ors. where the Hon’ble High Court of Jammu and Kashmir while descending the judgment after relying upon the judgment reported in 2009(3) Supreme 497, U.P. State Road Transport Corporation v/s Shanti Devi and Ors. has held “Where the deceased is a bachelor, the deductions have to be 50%”. Another rulings descended by the Hon’ble Supreme Court prescribes the deductions @ t0% if the person was a bachelor.

In view of the aforesaid rulings the basic income to the deceased is fixed at Rs 5000/- PM and since the deceased was unmarried, 50% income of the deceased is deducted towards personal and living expenses of the deceased leaving behind an amount of Rs 2500/- PM (Rs 5000 minus 50%) and Rs 2500 x 123= Rs 30,000/- P.A. The petitioner being the mother of the deceased, is at the age of 55 years and the age of the deceased is reported to be 35 years, the multiplier has to be selected on the basis of the age whichever is higher because the deceased died unmarried. Accordingly, the petitioner is on the side of the higher age and the multiplier of the petitioners age group has to be selected. The petitioner No. 1 was in the age group of 45-50 years at the time of accident so the multiplier has to be selected in this age group is 13. However, because of uncertainties of life the multiplier is little bit slashed and multiplier of 11 will be appropriate and just. Adopting the same, dependency of petitioners is assessed at Rs 30000 x 11 = Rs 3,30,000/- which is granted in favour of the petitioners as loss of dependency. Besides this, a sum of Rs 15,000/- is awarded as the funeral expenses is also granted in favour of the petitioners.

Thus the petitioner has been found entitled to the compensation of death of deceased Mintu under the following heads:

Total Rs 3,45,000/- (Rupees Three Lacs and forty Five thousands only )

The petitioners are held entitled to compensation of Rs 3,45,000/- in all which appears to be just and fair. The same shall be satisfied by respondent No. 1, United India Insurance Company. Interim Compensation if any received shall be deducted. Simple interest @ 7.5% PA is also allowed on award money from the date of filing of claim petition till realization. Whole amount of compensation shall be paid to the petitioner through crossed cheque out of which 50% shall be kept in fixed deposit in the name of the petitioner for a period of five years however petition at liberty to receive the monthly interest if so required.

The petitioner at the time of the accident did not joint the other petitioners as one of the claimants however at a later stae an application has been commended by Rakesh kumar and Rinky where the petitioner wanted to be arrayed as LRs of the deceased Kunti Devi. Rakesh Kumar and Rinky have produced the ration cards where their names have been depicted as son and daughter of the deceased Kunti Devi. The payment will only be made to them when the petitioners Rakesh Kumar and Rinky will produce the Succession certificate from the court.”

Ratio decidendi

8. Main arguments of counsel for appellant is that major son and daughter of original petitioner-Kunti Devi were neither dependants upon deceased and their mother; second limb of argument is that in presence of widow and they are not entitled for any compensation. He has further argued that award is perverse in nature, because during trial the evidence has been led with regard to dependency of deceased Kunti Devi on deceased, so when she died, there is no evidence led by legal representatives (brother and sister) with regard to their dependency on deceased. Further, original petitioner-Kunti Devi were neither dependants upon deceased and their mother; second limb of argument is that in presence of widow and they are not entitled for any compensation. He has further argued that award is perverse in nature, because during trial the evidence has been led with regard to dependency of deceased Kunti Devi on deceased, so when she died, there is no evidence led by legal representatives (brother and sister) with regard to their dependency on deceased. Further, tribunal has applied multiplier of legal representatives of Kunti, whereas it was not a case that brother and sister were dependent upon deceased; one more point has been raised that deceased has been termed as bachelor, but he was a married person as stated in claim petition. 9.The points raised by appellant are legal and sustainable, when these are appreciated in context with award. The bare perusal of relevant para of award as stated above, there is perversity in award.

10. There is a distinction between "right to apply for compensation" and "entitlement to compensation”. This distinction has to be seen on facts and circumstances of case. In present case, there is not an iota of evidence on record from which it can be inferred that brother and sister were dependent upon the deceased. They have simply been arrayed as legal heirs of Kunti devi-the original petitioner. Had any award been passed in favour of Kunti Devi, then it would have become her estate, and legal hers would be entitled for same. But in the present case, it is not so; right of entitlement of compensation of Kunti Devi-original petitioner was her personal right, which right also extinguished on her death. Her legal heirs have not produced any evidence with regard to their entitlement to compensation. "entitlement to compensation”. This distinction has to be seen on facts and circumstances of case. In present case, there is not an iota of evidence on record from which it can be inferred that brother and sister were dependent upon the deceased. They have simply been arrayed as legal heirs of Kunti devi-the original petitioner. Had any award been passed in favour of Kunti Devi, then it would have become her estate, and legal hers would be entitled for same. But in the present case, it is not so; right of entitlement of compensation of Kunti Devi-original petitioner was her personal right, which right also extinguished on her death. Her legal heirs have not produced any evidence with regard to their entitlement to compensation.

11. In view of above, award is set aside as it suffers from perversity of law and facts. Matter is remanded back to tribunal below to pass a fresh award after, brother and sister of deceased-Mintoo prove their entitlement for compensation. and facts. Matter is remanded back to tribunal below to pass a fresh award after, brother and sister of deceased-Mintoo prove their entitlement for compensation.

12. Disposed of in the afore said terms.

Jammu 29.12.2017 Narinder

(Sanjay Kumar Gupta )

Judge

This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.

( Tashi Rabstan )

Judge

Jammu 29.12.2017 Narinder